Even before Judge John Roberts faces 18 senators and a sea of
cameras, senators are reworking the informal ground rules for the
first high-court confirmation hearings in 11 years.
At the heart of the battle: How important a factor in the
decision to confirm is a nominee's ideology - and how much does the
Senate need to know about it?
Historically, the most toxic charges against any nominee are lack
of ability or ethical misconduct - claims that almost derailed the
1991 confirmation of Clarence Thomas. No one expects these to be an
issue in the Roberts hearing.
But Senate Democrats say they plan to question Judge Roberts
closely on his views on issues ranging from abortion to the commerce
clause of the Constitution. In a more controversial move, some
signal they may insist on access to private memos that Roberts
drafted while serving in the Solicitor General's office. A similar
request, refused by the White House in 2002, led to a filibuster of
Miguel Estrada, who later withdrew as a nominee for the D.C. Circuit
Court of Appeals.
"Ideology has always been part of confirmation fights, but it has
generally been kept just under the surface of questioning," says
Jonathan Turley, a professor at George Washington University Law
In fact, the Constitution sets no legal qualifications to serve
on the Supreme Court. While all justices have been lawyers, many of
the most respected had little or no experience as a judge before
confirmation. In a 1957 essay, Justice Felix Frankfurter fixed the
correlation between "prior judicial experience and fitness for the
Supreme Court" at zero.
But the nominee's political views have also been in play in past
confirmation fights, even if not openly acknowledged. John Rutledge,
nominated by George Washington to be Chief Justice in 1795, was the
first to be voted down over politics. (Unwisely, he delivered a
speech blasting the Senate for ratifying the Jay Treaty just before
senators were to take up his confirmation.) Nominee Ebenezer Hoar
was voted down in 1869 for urging the president to ignore the views
of home state senators in circuit court picks. Others, such as
Stanley Matthews in 1881 and Pierce Butler in 1922, were blocked for
an alleged probusiness bias.
Of 154 nominations to the Supreme Court between 1789 and 2004, 34
were not confirmed by the Senate, according to the Congressional
When Democrats regained control the Senate in 2001, one of the
first hearings in the Judiciary Committee was over the need for a
more open examination of ideology in confirming judges. Sen. Charles
Schumer of New York, who chaired that subcommittee panel, reopened
that debate in a policy address to the Center for American Progress
"If a nominee's ideology, judicial philosophy, constitutional
views are central considerations in a President's decision to
nominate (as they inevitably are) and if such questioning is going
on in private, I dare say that the American people have an absolute
right to have those questions answered publicly," he said. …